what the plaintiff had bound himself to prove. But at the pres

In assumpsit by S. S. as surviving partner of S. & J. S. the declaration stated the promises to be to S. & J. S. in the life-time of J. S. The Act of Limitations was pleaded, and to take the case out of that act, evidence was offered of a promise made to S. S. after the death of J. S. Held, that the evidence was sufficient to avoid the Statute; and that there was no necessity to declare specially on the promise to the Plaintiff, as surviving partner. And CHASE, Ch. J. who delivered the Opinion of the Court, said; "The case of a surviving partner is distinguishable from that of ' an Executor. An express promise made to an Executor creates "an assumpsit to him, and is founded on the antecedent consid"eration of a debt due to the Testator and a count in the decla"ration must be framed on it, and the proof must correspond with "and be adapted to it; the money when recovered will be as"sets in the hands of the Executor, and he will be accountable for "it. A surviving partner has a right to all the effects belonging "to the partnership, and to receive, sue for and recover, all the "debts due to the partnership. The right and remedy are uni"ted in him, the original promise made to him, and his deceased "partner, still exists, and the right of action with the remedy sur"vived to him. The acknowledgment to the surviving partner "saves and preserves the remedy in the survivor, and avoids the "bar by the Act of Limitations. It does not create a new assump"sit, but is a saving of the remedy on the original promise. The "surviving partner is accountable to the creditors of the firm, "and to the representatives of the deceased partner." Barney vs. Smith, On Appeal,) 4 Har. & Johns. Rep. 485. 495.

The Plaintiff, who was the surviving partner of J. and C. Allstan, and the Administrator of C. Allstan, his deceased partner, brought an action of assumpsit against the Defendant, who was the surviving partner of T. and A. Contee, and the Executor of A. Contee, his deceased partner. The Defendant pleaded the general issue and the Act of Limitations. A witness for the Plaintiff testified that A. Contee, in his life time, informed the witness that T. and A. Contee, owed the house of J. and C. Allstan, upwards of, or between 9 and 10,000 dollars. The Plaintiff also produced and read in evidence, sundry letters admitted to have been written, some of them by T. Contee, and the others by A. Contee, to J. and C. Allstan, acknowledging themselves indebted to A. and C. Allstan, and promising payment, making mention of accounts received but not examined, &c. Held, that such acknowledgments were sufficient to take the case out of the Act of Limitations. Allstan's Admr. vs. Contee's Ex'r. (In Error,) 4 Har. & Johns. Rep. 351:

ent day, upon the principle of subsequent decisions, the jury ought to have considered the promise of one as the promise of all; and therefore should have found a general verdict against all.

The acknowledgment of one out of several drawers of a joint and several promissory note, takes it out of the statute of limitations as against the others, and may be given in evidence on a separate action against any of them.[1]

A promise by an Administrator to pay a debt of the intestate, will not take the demand out of the Statute of 1791, c. 28, [Massachusetts,] limiting suits against Administrators to four years. Brown & Al vs. Anderson, Admx. &c. 13 Mass. Rep. 201. Dawes, Judge, &c. vs. Shed & Al. Exors. &c. 15 Mass. Rep. 6. & Vide Emerson vs. Thompson & Al. 16 Mass. Rep. 429. Heard vs. Meader, 1 Greenl. Rep. 157.

Et Vide Stat. 9 Geo. IV. (Cited, page 191, at the end of "note [1.])

[1] By the 1st section of the statute of 9 Geo. IV. passed 9th May, 1828, (and which went into operation on the 1st day of January, 1829,) Joint contractors, or executors or administrators of any contractor, shall not be chargeable in respect of any written acknowledgment of his co-contractor, &c. But this enactment is not to alter, take away, or lessen the effect of any payment of principal or interest, made by any person whatsoever. In actions against two or more such joint contractors, or executors, or administrators, if it shall appear at the trial or otherwise, that the plaintiff, though barred as to one or more of such joint contractors, or executors, or administrators, shall nevertheless be entitled to recover against any other, or others of the defendants, by virtue of a new acknowledgment or promise, judgment may be given and costs allowed for the plaintiff as to such defendant or defendants against whom he shall recover, and for the other defendant or defendants against the plaintiff.

A partial payment made on a note by the principal promissor, will take the debt out of the Statute of Limitations as to the surety, Hunt, Ex'or. &c. vs. Bridgham & Al. 2 Picker. Rep. 581.

And an acknowledgment will have the same effect, Frye vs. Barker & Al. 4 Picker. Rep. 382.

In an action on a promissory note, (a) tried before Hotham, Baron, at the Spring assises, in Hampshire, in the year 1804,

(a) Doug. 629.

The acknowledgment of a debt barred by the Statute of Limitations, by one of several joint debtors, is sufficient to take the case out of the Statute as against all. White vs. Hale & Al. 3 Picker. Rep. 291.

The acknowledgment of one of several joint makers of a promissory note, takes it out of the Statute of Limitations as against the others. Bound & Al. vs. Lathrop, 4 Conn. Rep. 336.

An acknowledgment within six years by one of the joint makers of a promissory note will revive the debt against the others, although that other has made no acknowledgment, and only signed the note as surety. Perham vs. Raynal & Al. 2 Bingh. Rep. 306.

If A. guarantee to B. the performance of any contract which B. may make with C., and six years elapse after the contract between B. an C., and before the bringing of the suit against A. upon his guaranty, no acknowledgment by C. subsequent to the contract, can take the case out of the Statute of Limitations as to A. Meade vs. M'Dowell, 5 Binn. Rep. 195.

In order to take a case out of the Statute of Limitations in an action on a promissory note it is not sufficient to shew a payment by a joint maker of the note to the payee within six years, so as to throw it upon the Defendant to shew that the payment was not made on account of the note. An acknowledgment by one part-ner to bind another in such case must be clear and explicit. Holme vs. Green, 1 Starkie's Rep. 397.

But in the case of Brandram & Al. vs. Wharton (1 Barnew. & Ald. Rep. 467.) LORD ELLENBOROUGH, CH. J. said; "This "doctrine of rebutting the Statute of Limitations by an acknow"ledgment other than that of the party himself, began with the "case of Whitcomb v. Whiting. [Doug. 652.] By that deci"sion, where however there was an express acknowledgment by "the actual payment of a part of the debt by one of the parties "liable, I am bound. But that case was full of hardship. For this "inconvenience may follow from it; suppose a person liable jointly with thirty or forty others to a debt, he may have actually paid it, may have had in his possession the document by which that payment was proved, but may have lost his receipt: then, though this

(to which the defendant pleaded the statute,) the plaintiff pro

was one of the very cases which the statute was passed to pro"tect, he may still be bound, and his liability be revived by a ran"dom acknowledgment made by some one of the thirty or forty "others who may be careless of what mischief he is doing, and "who may even not know of the payment which has been made. "Beyond that case, therefore, I am not prepared to go, so as to "deprive a party of the advantage given him by the Statute, by "means of an implied acknowledgment. No case can be cited ex

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"cept Jackson vs. Fairbank, (2 Hen. Black. 340.) where this has "been done, and in that case there is wanting one material circum"stance which exists in Whitcomb v. Whiting, for in the latter case the party who revived the debt by his acknowledgment, "became himself liable to contribute to it, but in Jackson v. "Fairbank, the acknowledgment, besides being a constructive one, was made by parties who never could be called upon for "contribution." BAYLEY, J. said, "This case is also distinguisha"ble from that of Jackson v. Fairbank, although certainly, "the reasons stated by Lord Ellenborough, I should doubt of the "propriety of that decision." And ABBOTT, J. said, “If it were "necessary in this case to overrule Jackson v. Fairbank, I "should require further time to consider it, although I am by no "means satisfied that that was a sound or good decision." & Vide to the same effect-Bell vs. Morrison & Al. 1 Peter's Rep. (Sup. Ct. U. S.) 368. Roosevelt vs. Marks, 6 Johns. Ch. Rep. 291.

for

And in the case of Porter vs. Blood, (5 Picker. Rep. 54, 57.) where one of the joint makers of a promissory note had delivered goods to the plaintiff to be by him sold, and the proceeds of such sale applied to the discharge of the note; and the amount was endorsed by the plaintiff within six years before suit brought; which endorsement it was contended, would avoid the defendants plea of the Statute of Limitations; WILDE, J. delivering the Opinion of the Court, said; "The case supposed to be most in point "by the plaintiff's counsel is that of Jackson v. Fairbank, 2 H. "Bl. 340. But this case has been very much shaken by that of "Brandram v. Wharton, 1 B. & A. 463. We do not, however, "deem it necessary to express an opinion as to these cases; because the plaintiff does not attempt to avoid the Statute of "Limitations, by showing, that he was acting under the authority "of a joint promissor with the defendant, but by the direction of "the defendant himself. And it cannot be doubted, if he was so directed, his acts in pursuance of the direction will bind the defendant."

A. and B. made a joint and several promissory note. A. died, and ten years after, B. who was one of A.'s Executors, paid, in his

duced a joint and several note, signed by the defendant, and three others, and having proved payment, by one of the others, of interest of the note, and part of the principal, within six years, and the judge thinking that was sufficient to take the case out of the statute, as against the defendant, a verdict was found for the plaintiff.

A rule was afterwards granted to show cause why there should not be a new trial, on the motion of Lawrence, who cited Bland v. Haselrig. And in support of the application he contended, that the plaintiff, by suing the defendant separately, had

treated this note exactly as if it had been signed only [#203] by the defendant; and therefore, whatever *might have been the case in a joint action, in this case the acts of the other parties were clearly not evidence against him. The acknowledgment of a party himself does not amount to a

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individual character and not as Executor, interest upon the note. In an action brought upon the note against the Executors of A., it was held that the payment of interest by B., did not take the case out of the Statute of Limitations, so as to make A.'s Executors liable. ABBOTT, Ch. J. said, "I think there is no evidence of a promise "by all, and certainly not such as to take the case out of the 66 Statute of Limitations. The evidence was, a payment of in"terest by Robert Tredgold in his own right. Whitcomb v. Whi"ting was relied upon to show that such payment would take the case out of the Statute of Limitations. It is not necessary to "say whether that case, which is contrary to a former decision in "Ventris would be sustained, if reconsidered; but I am warrant"ed in saying, by what fell from Lord Ellenborough in Brandram " vs. Wharton, 1 B. & A. 463, that it ought not to be extend*ed. The payment was by one of several originally, liable. "Here we are called upon to go further, and say, that a pay"ment by one of several, liable alieno jure, shall raise an im"plied promise by them all. Such a decision would introduce "great difficulty in administering the affairs of Testators. Suppose an Executor to have waited six years, and then no claim having been made, to dispose of the assets in payment of lega"cies. He might, if the Plaintiffs were to prevail, be subsequent"ly rendered liable to the payment of demands to any amount, by "the acknowledgment of a person originally joint debtor with the "Testator. The inconvenience and hardship arising from such a "liability, satisfies me that the principle of Whitcomb v. Whi

t